Fear, misunderstanding and lies

Christian Amanpour: One of the major issues...and it's a sort of holdover from colonial-Victorian...is the issue of  sexual preference in many African countries. In Kenya, to be gay, the LGBT community, is illegal. They just want to have equal rights, the same privacy and equality as all other Kenyans do. Is that something that you aspire to for your country?

Uhuru Kenyatta: I want to be very clear, uh, Christian. I will not engage in a subject that is of no...it's of no major importance to the people and the Republic of Kenya. This is not an issue as you would want to put it of human rights. This is an issue of society, of our own base as a culture, as a people, irregardless of which community you come from. This is not acceptable, this is not agreeable, this is not about Uhuru Kenyatta saying "yes" or "no". This is an issue the people of Kenya themselves, who have bestowed upon themselves a constitution, right, after several years, have clearly stated that this is not a subject that they are willing to engage in, yeah, at this time and moment. In years to come, possibly long after I am president, who knows? maybe our society will have reached the stage where those are issues that people are willing, freely and openly, to discuss, I have to be honest with you. And that is the position we have always maintained, those are the laws that we have, and those are the laws that are 100% supported by 99% of the Kenyan people, irregardless of where they come from.

It is amazing how difficult it is to discuss this subject without it getting lost in the tall weeds of Victorian-era laws, constitutional freedoms, cultural shibboleths, accusations of foreign aka USA cultural wars, and the catchall phrase, "Kenya is a Christian nation." This "subject", for those late to the party, is about whether the men and women who identify as LGBT enjoy the same rights and fundamental freedoms as those who identify as heterosexual.

From Kenya's mainstream media, you'd think that the subject isn't raging in the nation. But the unregulated interwebs have opened a space for debate on this subject, something that the President and his Government would prefer not to be happening at all because their constituency, made up of powerful faith-based organisations, powerful political leaders, and powerful foreign powers, have yet to allow equality to define public policy despite their oft-claimed "tolerance".

Kenya's Penal Code provides for the punishment for "unnatural offences" and "indecent practices between males". These provisions have long been used to invade the privacy of many individuals on the pretext of protecting the "cultural and moral values" of the country. Belying the total media blackout by the news media, an organisation called the National Gay & Lesbian Human Rights Commission has challenged the constitutionality of these provisions in the High Court. If its petition is successful, the organisation hopes that members of the LGBT community will stop being targeted for their sexual acts, and will access medical services without being discriminated against (and, hopefully, without being stigmatised).

Since 2010 when Kenya promulgated another constitution, the LGBT community has advanced its cause by challenging the validity of received wisdom, but it faces great challenges in reversing a century of ingrained religious, cultural and government prejudices. The President's equivocation is typical of the official Government attitude towards the LGBT community.

Many Kenyans have an almost pre-programmed visceral reaction to being informed that someone they know is gay. More often than not, it is disgust that characterises their response and colours any future dealings. Often, violence is visited on the one coming out, whether or not they had provoked violence (assuming their coming out is not provocation enough). This violence comes from many quarters: family members, intimate friends, policemen, teachers and even ministers of faith. Even today, when we know and understand so much about humans and human sexuality, it is dangerous to come out about ones sexuality.

Yet, it does not diminish us in any way to admit that regardless of our personal revulsion, LGBTs are humans and that they also deserve the full protection and benefits of our constitutional rights and freedoms. It is not an offence to be LGBT and it should not be an offence for adults to engage in consensual sexual acts. It is wrong to set aside public resources for the express purpose of hounding adults engaged in consensual sexual acts simply because they go against an arbitrary moral code that is founded on fear, misunderstanding and lies.

Social media planning

The Governor of Nairobi City County is a failure. His predecessor was a failure. Their predecessors in the City Council of Nairobi were failures. Their failures are reflected in the impossible-to-manage mountains of garbage, the impossible-to-repair potholes, the death-dealing public transport sector, and the rising homelessness that leads to the expansion of the now-permanent "informal settlements". Nairobi's governments have been failing for as long as we can remember. The current Governor, promises and social media campaigns notwithstanding, is not its saviour. He is just another politician with a slick tongue, fate wallets and the imagination of a stone.

It wouldn't be so bad if the Governor at least understood what governing was about. He does not. His social media accounts are a snapshot of the capriciousness of his management style and the total lack of an understanding of planning as a tool of effective management. His government's executive committee is made up of insider-dealers and well-connected civil society activists whose understanding of planning is limited to private for-profit business affairs or limited social welfare campaigns financed from foreign sources. None of them has experience managing an unruly city like Nairobi is, with a deficit-plagued budget, an ungrateful population, and structural problems that have metastacised over decades.

Niairobi's City Fathers are led by the Governor. In order for his leadership to bear fruit for the residents of the city, he must pay close attention to the fundamentals of planning. It isn't enough for him to hire the right people to undertake the planning function for him, he must understand what the planning is intended to do, how it will do it, how much it will cost, and how long it will take. He must understand the need to prioritise specific planning needs over others, and how to ameliorate the suffering of millions of his residents while keeping costs down, improving revenue collection, attracting investors (both large and small), providing better social services and all this while improving the safety of his residents. Gimmicks like pothole-repairing equipment or militias masquerading as "free" water providers are not it.

So long as the Governor has a badly-resourced, badly-managed, badly-led planning department, his failures will continue to exacerbate our suffering. Potholes will mushroom. Flooded roads will continue to plague even "international standard" highways. Sewers will continue to block and drains will continue to overflow. I am afraid, though, that this Governor is not smart enough to know that he doesn't know how to govern. I am afraid that so long as he is a social media champion poster, he never will.

Raising #IfikieWazazi kids

Growing up in the Social Media Age is fraught with risk. The cost of electronic devices has fallen dramatically since 2002, but it is the cost of accessing the internet and, with it, social media platforms that has fallen the farthest. Children and adolescents today have access to powerful devices and a plethora of platforms with which to access those platforms. We are all coming to terms with what this means for privacy and safety.

Facebook and the SCL Group have rammed home that nothing is ever truly private on the internet - and that deleting anything on the internet doesn't mean that it truly goes away. For this reason, individuals must learn how to manage the information they post online. The most vulnerable among us are children and adolescents who, in the cocoons of their families, homes, schools or faith-based communities, rarely have the maturity to appreciate the implications of sharing personal information on online platforms or with online communities.

One of the fastest growing and insidious communities is that which trades and traffics in child pornography. It takes advantage of the relative anonymity of online communities or platforms to infiltrate those which are populated by children and adolescents and takes advantage of the usually lax supervision of these communities and platforms to groom children for terrible things. 

In Kenya, over the past day or so, the hashtag #IfikieWazazi has trended on Twitter. It is one of the starkest reminders that we must do more to not only understand what social media is capable of doing but also how to assist and guide our children in this environment. It used to be that children and adolescents learnt about trust and risk in the company of other children and adolescents by interacting in real life while playing or attending school or performing religious activities. This was done out in the open under the watchful eyes of parents, teachers or ministers of faith. The adage, "It takes a village to raise a child" was apposite as your local community, in one way or the other, played a role in your upbringing -- but only because it was relatively small and we knew most of the people in it.

The situation in online communities is not the same. Predators can and do hide among the majority of generally passive members of online communities, and they continually get more sophisticated in using these communities and online tools to groom children for insidious ends, or take advantage of children's naivete when they share more than is safe for them to share. The moralists pushing the #IfikieWazazi hashtag have almost certainly been infiltrated by child pornographers whose only mission is to spread far and wide sexualised images of children and adolescents. Those children's and adolescents' reputations are at risk as are their physical and mental well-being.

It has always been the role of parents to teach their children how to live in the world and how to protect themselves from risk. #IfikieWazazi shows how much more important this role is today. Parents and their children must have honest discussions about the freedoms children enjoy online and the risks they face because of those freedoms. We must not condemn children for making mistakes; we must teach them that no matter how benign an error might seem, it will always bear consequences. Some may be mild while other might harm them physically, emotionally, mentally and socially. We must show them how to live in a world where you can see and meet other people - and one where the people you interact with may not actually be people at all. It is time for parenting to take into account that the internet is one more environment that must be managed in order to raise string, intelligent and capable children.

No free lunch

There are no free lunches. 

Unless you own them, construction material must be paid for in one form or another: building stones, sand, cement, steel bars, lumber, corrugated iron sheets, interior fixtures, door and window frames, windows and doors, floor tiles, ceiling boards, plumbing, electrical conduits, and the bric-a-brac that go into the construction of a house. Even when you own a piece of land and have managed to accumulate these things, you will spend a goodly sum to build a house. 

It is not free.

Kenya has a large population of homeless people. They can neither afford to own nor rent a house. For a majority of the homeless, their homelessness is involuntary. In order for Government to house them, the housing will be paid for out of the national revenue. Should Government take responsibility for housing the homeless? Should Government take the responsibility of housing Kenyans generally?

A Kenyan politician

Individual parliamentarians have served their constituents well. Peter Kenneth led the Gatanga CDF committee to great heights in the 9th Parliament, so much so that he parlayed his CDF record into a damp squib of a presidential run. Ken Okoth has inspired the Kibra CDF committee to build the schools that Matiangi's and Amina Mohammed's education ministry isn't interested in building. Otiende Amollo has taken the plight of widows in his rural Rarieda so much to heart that he has successfully rallied friends and well-wishers to come together to build modest homes for some of them and to organise a few extra funds or the widows to start businesses with. This has earned him praise in some quarters, scorn in others, and confusion in different ones.

Kenyan commentators tend to obsess with labels and what those labels mean. For elected representatives, they insist that parliamentarians should only do what the Constitution says that they should: represent the interests of their constituents in Parliament; make legislation; and oversee the executive and judicial branches. Kenya is impossible to so neatly pigeonhole.

The broad outlines of public policies are to be seen in the laws that Parliament and county assemblies pass each year but that is not how policies are implemented, if they are implemented at all. Take affordable housing as a policy objective of Government and the Housing Act, Chapter 117 of the Laws of Kenya, is one of the instruments for the achievement of that policy goals, especially sections 6 and 7 dealing with the Housing Fund. Obviously, what the law intended and what the law has achieved have a great deal of light between them. 

 

Mr Amollo's efforts for the widows in his constituency is a harsh admission that he may perform his three official roles with great energy, but there are no guarantees that he or his colleagues will not be called to intervene directly on behalf of their constituents. This is to say that Mr Amollo is not necessarily wrong for doing what he is doing in Rarieda even if sometimes it may appear that he is less that 110% committed to parliamentary business.

Kenya's parliamentary tradition, though founded on those of the British system, are singular in their qualities. The majority party and the opposition only work in concert when it is an issue that affects the personal welfare of their members: salaries and remunerations, medical benefits, committee memberships, domestic aka Mombasa and foreign junkets. But hen it comes to major political and policy decisions, the ruling party rules alone while he opposition stares from the sidelines because, in this day and age, major political or policy decisions are code words for tender opportunities in which the interests of the people rarely form a major part of the ration for the decisions. Mr Amollo may or may not wish to reverse this odious trend; but in taking an active role in ameliorating the suffering of widows in Rarieda, I don't think he can be faulted for his charitable works at the expense of parliamentary business.

Since his appointment as a member of the Committee of Experts, Mr Amollo's public service has been largely flawless. He has thoughtfully considered what is best for the peoples of Kenya and shared his views with us in a language that was free from the usual histrionics of some of his more excitable colleagues. He may not have sponsored any legislative proposals yet but since law-making is not an individual sport, this is not a black mark on his record. Mr Amollo is a Kenyan politician in a Kenyan parliamentary tradition. He is doing the best he can in those circumstances. If the good people of Rarieda decide that his do-gooding is not for them, they can either recall him before the end of his term or elect someone else come the next general election.

Do you want a rogue government?

The Ministry of Interior and Co-ordination of National Government is not an authority on the interpretation of the Constitution or the written law on citizenship and immigration. It is responsible for the enforcement of the written law, which may, on purely administrative questions, allow it to interpret the written law. But the Ministry has no jurisdiction whatsoever on the interpretation of the Constitution or the legitimacy of orders issued by competent courts. To suggest otherwise is foolhardy.

The Ministry's officials, especially its State officers, will almost always receive a good hearing from parliamentarians. The political reality is that the ruling party controls both the Executive and Parliament and, therefore, the parliamentarians of the ruling party are more likely to grant the Ministry's senior-most officials a sympathetic ear, especially when it discomfits the members of the opposition. However, Parliament's committees are not the right forum to canvas questions relating to the interpretation of the Constitution or the written law on citizenship and immigration. They are also not the right forum to parse the disinclination by Ministry officials to be served by court orders or to obey them once served.

In the sorry saga surrounding the arrest, detention, exiling and assault of Miguna Miguna, the Ministry has not covered itself in glory. Neither has Parliament. The ruling party's parliamentarians are fond of reminding judicial officers of the doctrine of separation of powers whenever Parliament and the Judiciary challenge each others' jurisdictions, but they are loath to do the same when it is clearly in the national interest to oversee the actions of the Executive. In Mr Miguna's case, the focus of the Committee on Administration and National Security of the National Assembly should not have allowed the Cabinet Secretary, his Principal Secretaries or the Inspector-General of Police to justify their decisions to ignore the orders of the High Court but should have held these State officers to account for their actions. In a brazenly partisan decision that will contribute to the further erosion of the authority of Parliament over the Executive, parliamentarians allowed the Ministry's officials to make public statements that, in any other light, would be strong proof of their perjury.

The ruling party has very right to ensure that it remains stronger than the opposition but its members in parliament have an constitutional and institutional obligation to ensure that Parliament never becomes the handmaiden of the Executive. It is not the responsibility of Parliament to rubber-stamp the actions of the Executive. Parliament's jurisdiction extends to overseeing these actions to ensure that they cohere with constitutional powers and where members of the Executive exceed those powers, to hold them to account. It is why Parliament has the power to summon State officials to appear before it and the power to impeach them if they endanger the constitutional order. In Mr Miguna's case, blind party loyalty has led Parliament to side with the Executive as it has taken a massive piss on the Constitution.

The consequences of this will reverberate far and wide. It is only a matter of time before Parliament itself takes constitutional liberties, if it hasn't already have, that jeopardise what little good governance is left. The contagion will spread to the Judiciary, constitutional commissions, independent offices, state corporations and county governments. Rights and fundamental freedoms will be weakened if not wholly trashed. Kenyans will pay the price and it won't be cheap. Parliament is supposed to reflect the aspirations of all Kenyans. It is hard to imagine that Kenyans want a rogue government at all.

A legacy of immiseration

Miguna Miguna is an extremely unpleasant person. He is also a Kenyan whose rights have been grossly violated. Mr Miguna's plight continues to affirm the state of Government, the body politic and the place of the people in the questions that affect their lives. Mr Miguna's tribulations are of a piece with the political theatre that surrounded the wrong neurosurgery of the wrong patient at the Kenyatta National Hospital, the schizophrenic declaration that Government was importing "affordable" maize stocks from Uganda while NCPB silos were bursting at the seams, the total abandonment of the one-laptop-per-child programme in favour of the "pilot" phase of the "new" curriculum rollout, and the continued failure of both the executive and parliament to comply with the two-thirds gender principle of the Constitution.

In the days when cabinet ministers were powerful men, like in the late John Michuki, it never occurred to judicial officers to give orders or directions that would displease the president; that was a sure way to great personal jeopardy. It all changed with Mwai Kibaki's election in 2002 and the chants that rent the air on the day he was sworn in: YOTE YAWEZEKANA BILA MOI. It was a rallying cry for the end of impunity. It was shortlived, in many cases, but with Mwai Kibaki's ill-fated "radical surgery" of the Judiciary, a anew cadre of judicial officers was appointed that, against great and corrupting odds, have kept more or less to the path of governance reforms.

Our Judiciary still has many things to get right, but by and large, beginning with the radical surgery, things are improving. The same is not true of the executive or parliament. In both, impunity goes from strength to strength, bolstered by a keen desire to not paint each other in bad light. Parliament will not hold members of the executive to account for their gross acts of constitutional sabotage and the executive will bend over backwards to ensure that the gravy train members of both institutions are riding remains untroubled by court orders or constitutional principles. It is why the Cabinet Secretary for Health hasn't lost her job for presiding over disfunctional referral hospitals and why the Cabinet Secretary for Education can get away with declaring blithely that it is parents' and children's faults that students and pupils perform abysmally in national examinations. It is why the National Treasury CS will one day admit that the Treasury is broke and then turn around the following day and utter those famous words beloved of Kenyan politicians: I was misquoted.

If there is an event that showed just how disfunctional the executive has gotten, it was the presence of the wife of a senior state officer together with public officials from the roads ministry at the sight of numerous fatal road traffic accidents for the purposes of a religious ceremony known as a "cleansing". Government had completely failed to get a proper handle on the accidents on that stretch of road and had decided to fall back on superstitious practices overseen by dubious ministers of religion as the only solution. It reminds me of that time the Zambian president called for prayers to halt the kwacha's freefall against global currencies.

Miguna Miguna is what happens when public institutions atrophy and then shut down. Everyone is in it for themselves. The rights or the needs of the people play second fiddle to the need of Government to sustain itself at all costs. It is almost certain that in the next four years as the executive and parliament try, and fail, to implement the Big Four Agenda, public healthcare services, basic education, public safety and the rule of law will all take massive hits after massive hits. The lasting legacy of this regime will be the immiseration of the most vulnerable and neglected Kenyans: the ones who are and shall remain poor.

Is Miguna Miguna a Kenyan citizen?

Is Miguna Miguna a Kenyan citizen? Kenyan citizenship law should be straight forward. Article 13 (2) states, 

Citizenship may be acquired by birth or registration.

Article 14 (1) states,

A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.

And Article 14 (5) states,

A person who is a Kenyan citizen by birth and who, on the effective date, has ceased to be a Kenyan citizen because the person acquired citizenship of another country, is entitled on application to regain Kenyan citizenship.

Article 14 (5) contemplates a situation where a Kenyan citizen by birth who had ceased to be a citizen due to the acquisition of the citizenship of another country. Proof of citizenship is usually by way of a passport issued by that country's government. Mr Miguna possesses a Canadian passport, making him a Canadian citizen.

Section 97 (3) (a) of the former Constitution stated,

A citizen of Kenya shall, subject to subsection (7), cease to be such a citizen if ... having attained the age of twenty-one years, he acquires the citizenship of some country other than Kenya by voluntary act (other than marriage)...

Subsection (7) isn't germane for our purposes.

Mr Miguna's case is the aftermath of the swearing in of Raila Odinga as the People's President which Mr Miguna witnessed and commissioned (as an advocate of the High Court of Kenya) the document that declared Mr Odinga as the People's President. Members of the ruling party and senior officials of the national executive have declared that Mr Odinga's swearing in ceremony was an act of treason and that any person who participated in or witnessed the ceremony without doing anything to stop it was also complicit in that act of treason. Mr Miguna falls into that category of witnesses and participants who have riled up the members of the ruling party and senior officials of the national executive.

The treason charge is patently laughable and that is why no one has been charged with treason for participating or witnessing Mr Odinga's installation as the People's President. It is why Mr Miguna was arrested, detained and deported on immigration grounds and not for treason. During his weekend odyssey with officers of the National Police Service, the Cabinet Secretary, the Inspector-General and the Director of Immigration were all ordered to, variously, produce Mr Miguna before the High Court, restore his Kenyan passport to him, and hold off on deporting him until the court determined the matter. All orders were ignored. But the question of Mr Miguna's citizenship was never definitively settled.

Had the national executive obeyed the orders of the High Court, we would have been able to answer the following questions: how Mr Miguna lost his citizenship (or when he acquired Canadian citizenship); when Mr Miguna obtained his new Kenyan passport and how; when Mr Miguna obtained his national ID card and how; and whether or not he had committed any offences regarding his immigration and citizenship statuses.

So, I ask again, is Miguna Miguna a Kenyan citizen?